Localism Bill

Memorandum submitted by the Association of Council Secretaries and Solicitors (ACSeS) (L 155)


ACSeS represents chief legal officers and many heads of democratic or governance services in local government. We are a non party political organisation. We have been at the front line of facilitating the governance regime and operating the standards regime under the Local Government Act 2000, and have specific responsibilities for corporate and ethical governance. This submission relates to the corporate governance provisions in the Bill (in particular chapters 1 and 2 and Schedule 2) and to the ethical governance provisions in the Bill (Part 1, Chapter 4 and 5).

Corporate governance provisions

A General Power of Competence – Chapter 1 – Clauses 1-7

ACSeS welcomes the clear introduction of a General Power of Competence for local authorities as a means of delivering improved and more cost effective services for its residents, businesses and visitors but has concerns about its application as drafted in the Bill.

Clause 1(1) refers to this power as a "power to do anything that individuals generally may do"

The term "individual" is not clearly defined either here or generally and a better definition might be "legal person" to give it the widest legal meaning possible. We would recommend a review of this term to enable better understanding and application of the provision.

Clearly any such power must have its limitations within the law. The concern here is the extent of those limitations particularly in clause 2 following, which severely curtail a local authority’s use of this power in the best interests of its community. This would include a complete restriction on the use of this power to address any governance issues, limitations on charging and exercise only through a limited company.

On the latter point, while there will be occasions where the assets of the local authority should be protected against use of the general power; in the vast majority of cases this will not be at issue and this should only be applied when triggers are met such as a commitment of a level of expenditure or trading above a given level. Moreover the limitation to a limited company rules out the use of the power to be exercised through a limited liability partnership which would afford the same degree of protection and would be a necessary or critical prerequisite in a number of joint service ventures not least legal services.

Available Governance Arrangements

ACSeS welcomes the opportunity for councils to revert to committee systems if they wish and broadly welcome the powers available to a council to bring about a change in governance arrangements.

However ACSeS in common with many others in local government strongly believe that any such decision should only be taken at a local level and not imposed from central government.

Moreover with ever increasing joint delivery of functions, there is a need for consistency across local government as to what is and what is not an executive function, which was largely in place under the 2000 Act but now is a matter for each Executive, or by law or by order and will lead to different arrangements in neighbouring authorities and could impede effective joint working.

Delegation of functions (Schedule 2, S.9E)

This proposed new section to the Local Government Act 2000 vests the power to delegate and withdraw delegation in the hands of one person under an executive model. The mayor or leader with power to give or take away at any time or once given exercise the delegated power by the one who had delegated it.

There is a need for certainty in the delegation and exercise of functions at a local level and whatever the merits of this approach; as drafted this fails to deliver that certainty and will lead to increased costs and potential for legal challenge. This is particularly important where this power is delegated to area committees of the Council or even to other authorities.

Overview and Scrutiny Function (Schedule 2, SS 9F following)

ACSeS welcomes many aspects of these proposed changes in particular the removal of the requirement for councils with politically balanced committees to also have an overview and scrutiny committee or panel. It also welcomes where such committees operate the powers of any member to refer a local government matter to overview and scrutiny and the ability of districts participating under a local area agreement to serve notices of issues on the relevant county council.

ACSeS is concerned however at the proposal enabling a scrutiny member to "review or scrutinise decisions made … of any functions which are not the responsibility of the executive" In particular it is concerned about the review of regulatory decisions be they in planning, licensing, childcare or adoption or education. In many cases such decisions have direct review or appeal arrangements to a court or appeal mechanism outside the authority and unless such functions are specifically excluded this important link is compromised.

ACSeS is also concerned to ensure that decisions as to what is and what is not a local government matter for that area should be the preserve of the elected representatives of that local community, i.e. local members and not central government. Clearly any exercise of that power which is deemed Wednesbury unreasonable would be open to judicial review and therefore a power to the Secretary of State to determine what may not be a local government matter would appear unnecessary.

Elected Mayors

In line with points made elsewhere the decision as to whether a community should choose to have an elected mayor should be a local one and not imposed from central government.

It is unclear from the Bill when shadow elected mayors would come into being and this needs clarification.

There are concerns about transfer of public service functions to a mayor from other parts of the public sector on the proposal of the mayor. These are significant proposals with significant implications and warrant greater consideration than from just one individual together with procedures for bringing these changes into being. Moreover ACSeS do not see why these proposals should only be the prerogative of a mayor but not available under a Leader/Executive model or a committee system?

ACSeS consider that the proposals to allow for an elected mayor in certain circumstances to also become Head of the Paid Service requires more detailed consideration. Because such a role would straddle across the elected official and employed official line to a far greater degree than ever before then there would need to be checks and balances in place designed to deliver realistic checks on the exercise of that function. This should be addressed locally and perhaps supported externally and needs to have sufficient weight and independence to provide that realistic check.

Standards regime

ACSeS welcomes the Bill’s objective of streamlining the standards regime while maintaining high ethical standards. But we have concerns that the Bill as drafted risks creating new inconsistencies and problems in dealing with standards issues while leaving gaps in coverage which may undermine the objective of maintaining those standards.

Code of conduct

The current code of conduct covers both general matters of behaviour and the provisions on interests. The Bill appears to attempt to split these two, although the provisions on the voluntary code do not provide that the voluntary code can no longer cover interests. Equally, the limitation on sanctions that an authority can impose appears in relation to the regulations on interests, and not in the provisions on the code. The only rules on the sanctions are set out in clause 16(4), which provide for an authority to decide "what action to take ". If the government’s intentions are that the voluntary code should not cover interests, and should not allow for suspension or disqualification, the Bill appears to need correction to achieve what it intends.

ACSeS would however note that making the adoption of a code of conduct voluntary rather than mandatory risks undermining the high ethical standards which the Bill appears to be aiming at with the clause 15 duty. It follows from the lack of a national code that there will be no common understanding of the standards that should apply to councillors and no ability to enforce standards if an authority chooses to have no code. In some cases this appears to undermine the government’s own objectives. For example, one of the ways in which the publicity code (which prevents the use of council resources for political purposes, among other things) is enforced is through the code of conduct provisions requiring members to ensure they use the authority’s resources for proper purposes only, having regard to the publicity code. The government’s ability to enforce its own changes to the publicity code are therefore being undermined by the lack of a national code in this Bill.

ACSeS would therefore support the maintenance of the requirement for local authorities to adopt a code.

Criminalising councillors

Clauses 17 and 18 of the Bill proposes that that part of the code which dealt with interests should be replaced by regulations relating to interests which are enforced through the criminal process. The detail will be left to regulations, but these provisions raise a number of issues.

The most serious relates to the proportionality of criminalising councillors in this way. The potential offence under clause 18(1)(a) would be made out if a councillor merely failed to register any type of interest without a reasonable excuse. In our experience, it is relatively common for councillors to make mistakes in relation to their declarations. It seems excessive to make such conduct a criminal offence. In practice, this would no doubt be dealt with by a prosecution policy that effectively ignored such offences, but it would be unfortunate to create an excessively strict regime that had to be dealt with by prosecutorial discretion.

ACSeS also has concerns as to whether the local police will have the resources to deal with the more serious cases which would be caught by the regulations, and to do so in a timely manner. It would be unfortunate if serious irregularities were left untouched, and equally unfortunate if the publicity attendant on any such case ruined the career and reputation of an innocent party because of the length of time that criminal cases can take to resolve.

On a more technical level, clause 17(2)(e) appears to imply that some parallel power for the authority to sanction members who breach the rules on interests will be maintained. It is not at all clear how the two enforcement routes would fit together, nor indeed who within the local authority would be responsible for the clause 17(2)(e) sanctions if the authority had chosen not to have a standards committee or a code, and therefore had no infrastructure for dealing with these issues.


One of the most difficult aspects of the current code of conduct was its limitation to official capacity. This has left a significant area of potential misconduct outside the scope of the code. Under the current code, it is possible for councillors to be disqualified for any serious breach of any of the provisions of the code. Under the Bill’s proposals, it is not clear whether it would be possible for an authority to disqualify for a breach of its own code, but if a councillor was convicted of an offence under clause 18, it would be possible for them to be disqualified by the court.

At the same time, section 80 of the Local Government Act 1972 also covers certain conduct issues which lead to disqualification, as follows:

Subsection (1)(b) "is the subject of a bankruptcy restrictions order or an interim order "

Subsection (1)(d) "has within five years before the day of election or since his election been convicted in the United Kingdom, the Channel Islands or the Isle of Man of any offence and has had passed on him a sentence of imprisonment (whether suspended or not) for a period of not less than three months without the option of a fine".

The combined effect of the new provisions of the Bill and the current section 80 provisions creates an odd patchwork which does not appear to match current public expectations of the behaviour of elected members.

As an illustration, take four hypothetically badly behaved councillors. Councillor A has persistently racially abused members of the public and officers. Councillor B declared a prejudicial interest in a planning application but then sat in the public gallery to watch the committee procedure. Councillor C committed housing benefit fraud and was sentenced to community service. Councillor D, on holiday in France, drank far too much and caused a car accident in which a family was injured, for which he was convicted and sentenced to 5 months in jail. Under the current law and the proposals in the Bill, only Councillor B would potentially be liable to be disqualified.

ACSeS would question whether the balance in the government’s proposals on this issue would fit the public expectation of the behaviour of elected members.

ACSeS hopes these concerns will be taken into account by the Committee in its consideration of the Localism Bill.

March 2011